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Introduction

Criminal informants provide important information to the justice system, but they also pose serious risks. We hope this website will help attorneys, journalists, advocates, and families to better understand this vital area of public policy.

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WRONGFUL CONVICTIONS

Criminal informants are famously unreliable. Jailhouse snitch testimony often leads to wrongful conviction. Over 45 percent of all innocent people exonerated from death sentences were wrongfully convicted based on the testimony of a lying criminal informant. This makes snitches the leading cause of wrongful conviction in U.S. capital cases.

YOUNG INFORMANTS

Police sometimes use children as young as 14 as informants. These children may be exposed to drugs, violence, and other criminal activities as they work to get information for their handlers. Some have been killed. California and New Jersey have laws restricting the practice: in other states police have discretion to use juvenile informants.

INFORMANT CRIMES

Some informants are serious criminals who receive leniency for their own crimes. The FBI has been known to use murderers as informants. Many jurisdictions permit drug dealers to continue selling drugs in exchange for cooperation. In 2011, the crimes committed by FBI informants alone totaled over 5,600.

URBAN COMMUNITIES PAY THE PRICE

Informants are a staple of drug enforcement. This means that where drug enforcement is heaviest, informant activity is also heaviest. Because drug arrests occur disproportionately in low-income African American neighborhoods, those residents must live with the crime, violence, and distrust that go with criminal informant use.

REFORM

Many states are rethinking their criminal informant policies. Some have passed laws restricting the use of jailhouse snitch witnesses. Some have created new rules for disclosure and accountability. The U.S. Congress is considering a number of reforms that would improve transparency and safety. In the future, the laws governing criminal informants will likely look very different than they do today.

Friday, September 29, 2017

Here's an op-ed I wrote for The Crime Report chronicling the latest wave of state legislative reform. Some highlights:

-Texas
passed comprehensive reform requiring prosecutors to track and disclose their
informants’ criminal history, past testimony, and benefits.The New York Times called it “the most
comprehensive effort yet to rein in the dangers of transactional
snitching.”

-Andrew’s Law in North Dakota prohibits campus
police from using students as informants.State police may only use informants with a written agreement.Of particular note, Andrew’s Law bans the use
of child informants under the age of 16, one of very few states to do so.

-Illinois came very close to re-instituting
reliability hearings.The state
previously required them in capital cases: now that Illinois no longer has the
death penalty this bill will require pretrial hearings for all jailhouse
informants.

-Washington recently
considered two bills. One from 2016 would have required pretrial
reliability hearings in all informant cases.The other would have required enhanced
prosecutorial disclosure.Barry Scheck, founder and director of the
Innocence Project, wrote that the Washington legislation was a “key advance”
and that it represented an opportunity to “ensure that the strongest
protections are in place for the innocent.”

Friday, September 22, 2017

The FBI reports to the Department of Justice the total "Otherwise Illegal Activity" (OIA) that it authorizes its informants to engage in. In its most recent report due to an error, some of that data was missing--the total was down from 5,261 crimes to 381. The FBI explains that “When the FBI submitted 2016 data to the Justice Department regarding the Confidential Human Source Program one tier of data accidentally was not submitted." Presumably the FBI omitted Tier 2 crimes--the less serious tier. Here's the story which was featured on the Marshall Project's Opening Statement: FBI Severely Underreported How Many Times It Authorized Informants to Break the Law [Updated]
The 2017 Confidential Informant Accountability Act would expand the FBI's reporting requirement. The FBI (and all other federal investigative agencies) would have to report to Congress, not just DOJ. And it would have to report not only the crimes it authorized its informants to commit, but all the serious crimes that it has reason to believe that its informants committed while working for the agency.

Wednesday, July 19, 2017

At the recommendation of the Timothy Cole Commission, Texas has passed strong new legislation requiring the government to collect a range of data on its jailhouse informants, including prior testimony and benefits, and to turn that data over to the defense. The bill is here. And here is the New York Times Editorial Board's glowing review of the new law, Texas Cracks Down on the Market for Jailhouse Snitches, calling it "the most comprehensive effort yet to rein in the dangers of transactional snitching." The Times also notes, however, that prosecutors are supposed to turn over such evidence anyway and that further reforms are called for, such as reliability hearings and barring informants in capital cases.

Wednesday, May 3, 2017

Originally posted May 3: In a rare display of potential discipline, the prosecutor who misused a jailhouse informant against Cameron Todd Willingham--John Jackson--is on trial for ethics violations. "Specifically, the state’s lawyers contend that Jackson made a deal with a jailhouse snitch who agreed to testify against Willingham and then hid that deal from Willingham’s defense attorneys — a clear violation of both law and ethics. They say that Jackson took extraordinary measures over the next two decades to conceal his deceitful actions." Here is the story from The Intercept.Update May 13: The jury acquitted prosecutor John Jackson. From The Marshall Project: "By an 11-to-1 vote, a Navarro County jury rejected claims by the State Bar of Texas that Jackson made false statements, concealed evidence favorable to Willingham’s defense and obstructed justice."

Wednesday, April 26, 2017

In the wake of the death of college student Andrew Sadek, North Dakota has passed Andrew's Law, an important piece of legislation that sets a new standard in informant reform. Some of the most heartening aspects of the bill are as follows:

It bans the use of informants who are 15 years old or younger. Only California and New Jersey currently ban the use of juvenile informants at the state level, and their cutoff is 12 years old.

College police may not use college students as informants.

Police officers must be trained before they use informants.

All informant agreements must be in writing. The agreement must include, among other things, an explanation of what the informant is expected to do and what benefit they can expect to receive. This is particularly important since young and vulnerable informants may not know what is expected of them, and law enforcement may continue to use them without clear boundaries or limits.

The agreement must tell the informant of their right to consult with counsel.

The agreement must warn the informant that the work may be dangerous.

The bill creates procedures for complaints, and an investigative process when an informant is killed.

This legislation is the culmination of a decade-long public debate over vulnerable informants that has been brewing since 23-year-old Rachel Hoffman was killed in Florida in 2008. Since then, we have learned about the rampant, unregulated use of young informants, and how some campus police pressure college students into risking their education and even their lives. North Dakota's new law is one of the best responses so far. More details from the Huffington Post here.

Sunday, April 9, 2017

Montana State Senator Nels Swandal (R) has introduced legislation--SB0249--that would improve the reliability and accountability of informant use. Among other things, the bill would require the recording of informant statements, improved disclosure of informant benefits and prior criminal history, reliability hearings, and post-conviction remedies for wrongful conviction. News coverage here.

Last week, the House Committee on Oversight and Government Reform held a hearing on April 4, 2017, in response to U.S. Department of Justice reports that ATF and DEA were mishandling their informants. Testimony was heard from DOJ Inspector General Michael Horowitz, DEA Acting Principal Deputy Administrator Robert Patterson, and ATF Associate Deputy Director Ronald Turk.

From the Committee's website:

TAKEAWAYS:

The Drug Enforcement Administration (DEA) continually refused to provide the Committee its new policy regarding the proper use of confidential informants (CIs). During the hearing, Chairman Chaffetz issued a subpoena to DEA for the documents.

The Bureau of Alcohol, Tobacco, Firearms and Explosives’s (ATF) and DEA’s inadequate oversight over the CI program prevents the agencies from properly tracking and monitoring CIs.

Since 2012, ATF and DEA paid CIs almost $260 million, with payments largely determined by field agents who did not seek approval or review from headquarters.

The Department of Justice Office of Inspector General (DOJ OIG) found incomplete and inaccurate tracking of money or amounts paid to CIs at both agencies.

DOJ advised ATF Associate Deputy Director Turk not to appear and testify before the Committee’s hearing last month on the death of ICE Agent Jaime Zapata.

Tuesday, March 21, 2017

A bill that would improve recordkeeping and disclosure regarding jailhouse informants just passed out of the California Legislature's Public Safety Committee. The bill would also cap certain informants benefits. Bill here and ACLU press release here.

I testified in support of the bill along with Bruce Lisker, who was wrongfully convicted of murder at age 17 based on jailhouse informant testimony, and spent 26 years in prison before he was exonerated. Here is Mr. Lisker's testimony from today's hearing:

"Honorable Assembly Persons, my name is Bruce Lisker. I am here to urge a YES vote on AB359. On March 10, 1983 my teenage world became a nightmare.I discovered my mother beaten, stabbed and left for dead on the floor of our Sherman Oaks home. It wasn't long before a corrupt LAPD detective was, unbelievably, arresting ME for the attack. I was cast into the notorious “Snitch Tank” at L.A. County Jail, where I met a vile creature known as Robert Hughes, a morally bankrupt jailhouse informant with an extensive rap sheet and one overriding mission - to get out of jail.

After conning me into innocent conversation, Hughes told police I'd confessed to him. I was the fourth target of his lies inside of 18 months. Police fed him cigarettes and food, flew him in private LAPD aircraft - and my prosecutor got him sprung from prison months early.

Hughes’ lies, and the criminal justice system that encourages them, cost me more than twenty-six years of freedom and youth I can never get back. Had AB359 been the law of the land, my lawyer would have known that Hughes had a lengthy history of severe mental health issues, including documented psychotic breaks.

He was given inducements to investigate and testify against me, had unrecorded interviews with police about the case, and undue influence rewarded his lies with the thing he coveted most, his freedom. All this was hidden or misrepresented by police and prosecutors.

Evidence is clear – jailhouse informant testimony is a leading causes of wrongful conviction in America. As demonstrated by the recent outrage in Orange County, and investigations in at least five other California counties, this problem persists. Please vote YES on AB359.Society deserves no less."

Before approaching a potential informant, agents are encouraged to build a file on that person, using information obtained during an FBI assessment, including derogatory information and information gleaned from other informants. The FBI claims that it seeks derogatory information in order not to be blindsided by its informants’ vulnerabilities, but such material may also be useful in coercing cooperation from otherwise unwilling recruits.

FBI agents may use undercover identities to recruit informants, including online. These approaches are not limited by a rule stipulating that agents and informants are allowed no more than five meetings with a target before their activity is subject to supervisory approval as an undercover operation.

With permission from supervisors, FBI agents may recruit minors as informants. They may also, with permission from the U.S. Department of Justice, recruit clergy, lawyers, and journalists.

Informants may operate in other countries for the FBI, and the FBI guidelines do not require notification to be given to the host countries."

The FBI has long used immigration as both a carrot and stick to induce people to become informants. See this story from BuzzFeed last year: Welcome to America, Now Spy on Your Friends. Now the Intercept has published this article: When Informants Are No Longer Useful, the FBI Can Help Deport Them. It includes new information from the FBI's "Confidential Human Source Police Guide"--its manual for handling informants--which uses the phrase "immigration relief dangle" to describe the dynamic. FBI agents coordinate with immigration officials to identify and pressure potential informants, and then help ICE locate them for deportation when they are no longer useful. From the article:

"It’s been clear for a decade that the FBI works with ICE to keep informants in the country. What we didn’t know was that the assistance is often contingent and temporary, and that the FBI actively assists ICE in locating informants who are no longer useful so that they may be deported."

“'This creates a perverse incentive structure, because informants are incentivized to keep themselves valuable,' said [immigration expert and Stanford lecturer Diala] Shamas. 'It will further incentivize them to create investigations when there wouldn’t be one otherwise. In the traditional criminal context, the law enforcement community is conscious of the risk that coercing informants increases the likelihood of getting bad intelligence. But in the counterterrorism and intelligence context, this caution has been thrown out the window.'"